Guardians Ass'n of New York City Police Dept., Inc. v. Civil Service Com'n of City of New York

• Decision Date: 31 July 1980
• Docket Number: No. 849,D,849
• Citation: 630 F.2d 79
• Parties: 23 Fair Empl.Prac.Cas. 909, 23 Empl. Prac. Dec. P 31,154 The GUARDIANS ASSOCIATION OF the NEW YORK CITY POLICE DEPARTMENT, INC., The Hispanic Society of the New York City Police Department, Inc., Nydia I. Diaz, James Michael Hidalgo, Wilfred Cebellero, Andre Lopez, Reinaldo Salgado, Denise Santos, Deborah Holmes and Pamela Obey, individually and on behalf of all those similarly situated, Plaintiffs-Appellees, v. CIVIL SERVICE COMMISSION OF the CITY OF NEW YORK, Department of Personnel of the City of New York, and The New York City Police Department, Defendants- Appellants. ocket 80-7027.
• Court: U.S. Court of Appeals — Second Circuit

Page 79

630 F.2d 79

23 Fair Empl.Prac.Cas. 909,

23 Empl. Prac. Dec. P 31,154

The GUARDIANS ASSOCIATION OF the NEW YORK CITY POLICE

DEPARTMENT, INC., The Hispanic Society of the New York City

Police Department, Inc., Nydia I. Diaz, James Michael

Hidalgo, Wilfred Cebellero, Andre Lopez, Reinaldo Salgado, Denise Santos, Deborah Holmes and Pamela Obey, individually and on behalf of all those similarly situated, Plaintiffs-Appellees, v. CIVIL SERVICE COMMISSION OF the CITY OF NEW YORK, Department

of Personnel of the City of New York, and The New

York City Police Department, Defendants-

Appellants.

No. 849, Docket 80-7027.

United States Court of Appeals, Second Circuit.

Argued Feb. 6, 1980.

Decided July 31, 1980.

Peter Bienstock, New York City (M. D. Taracido, Kenneth Kimmerling, Robert L. Becker, Puerto Rican Legal Defense & Education Fund, New York City, on brief), for plaintiffs-appellees.

L. Kevin Sheridan, Asst. Corp. Counsel, New York City (Allen G. Schwartz, Corp. Counsel, Judith A. Levitt, Steven M. Goldberg, Maureen M. McCabe, New York City, on brief), for defendants-appellants.

David L. Rose, Washington, D. C. (Robert B. Fiske, Jr., U. S. Atty., Nancy E. Friedman, Richard N. Papper, Dennison Young, Jr., Asst. U. S. Attys., New York City, Drew S. Days III, Asst. Atty. Gen., Steven H. Rosenbaum, Washington, D. C., on brief), for the United States as amicus curiae.

Ira H. Leibowitz, Barry Lasky, Garden City, N. Y., submitted a brief for The Policewomen's Endowment Assoc., Inc., as amicus curiae.

H. Elliot Wales, New York City, submitted a brief for Seven Civil Service Organizations as amicus curiae.

Before MANSFIELD and NEWMAN, Circuit Judges, and SIFTON, ^* District Judge.

NEWMAN, Circuit Judge:

This employment discrimination suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, once again requires this Court to venture into the complex realm of testing and test validation. The test at issue was designed by New York City officials and administrated on June 30, 1979 to 36,797 applicants for positions on the City's police force. Plaintiffs are the Guardians Association of the New York City Police Department, Inc., an organization of Black police officers, the Hispanic Society of the New York City Police Department, Inc., an organization of Hispanic police officers, and eight individual Black or Hispanic applicants. Defendants are the New York City Department of Personnel, which performed much of the test preparation, the New York City Civil Service Commission, and the New York City Police Department. The United States District Court for the Southern District of New York (Robert L. Carter, Judge) found that use of the test unjustifiably discriminates against Blacks and Hispanics in violation of Title VII. Guardians Ass'n v. Civil Service Commission, 484 F.Supp. 785 (S.D.N.Y.1980). The Court ordered a broad remedy, including a 50% minority hiring quota. We affirm the District Court's finding that the City's specific use of the test violates Title VII, but vacate the remedy and remand for entry of a revised decree.

I. Factual Background

The test in question, designated Exam No. 8155, was designed to select candidates for hiring as entry-level police officers. Those who pass the exam are selected, in rank order of their test scores, to complete the other aspects of the hiring process-a medical examination, a physical agility test, a psychological test, and a character investigation. These last four components of the hiring process are scored only on a pass/fail basis. Thus, an appellant's score on Exam No. 8155 is a major determinant of his prospects for becoming a police officer. It is also the only feature of the process alleged to have a discriminatory impact. Once an applicant scores high enough to be selected for the final four hiring steps and successfully completes those steps, he or she becomes a sworn police officer and enters the police academy for five months of training. While successful completion of the training program is a requirement of continuing as a police officer, the Department does not use the training program as a selection device, but anticipates that nearly all academy entrants will go on to active duty.

The exam was developed by a fairly elaborate two-stage process; the first stage was an analysis of the police officer's job, and the second was construction of the test itself. The job analysis consisted of five separate steps. First, the Department of Personnel identified 71 tasks that police officers generally perform, based on interviews with 49 police officers and 49 supervisors. Second, a panel of seven officers and supervisors reviewed the list to add any tasks that had been omitted, and to eliminate those items that were duplicative, or too specialized to be performed by entry-level officers. The result was a consolidated list of 42 entry-level tasks.

Third, a questionnaire was distributed to 5,600 police officers, requesting them to rate each of the 42 tasks on the basis of its frequency of occurrence, its importance, and the amount of time normally spent in performing it. The 2,600 responses that were received were then analyzed by computer to yield a ranking of the 42 tasks, according to the combined rating of all the responses. In addition, faculty members of John Jay College were asked to observe police officers during an entire tour of duty and record the tasks that they performed; their survey generally confirmed the identification of the 42 tasks.

In the fourth step of the job analysis, the Department of Personnel divided the list of 42 ranked tasks into clusters of related activities. Five such clusters were established: the arrest process, providing assistance to people, police operations, stationhouse activities, and handling unusual and other occurrences. The fifth step was an analysis of all five clusters, each one by a separate panel of police officers, to identify the "knowledge, skills and abilities" required to perform these tasks at the entry level, and to assign percentages reflecting the relative importance of each of the identified knowledges, skills, and abilities for the cluster as a whole. One panel listed five such qualities for its cluster, all of which are properly characterized as "abilities" or "skills" (hereafter referred to as "abilities"): recalling facts, filling out forms, understanding and applying statutory definitions of crimes, understanding written instructions and applying appropriate procedures, and human relations skills, including communication techniques. Each of the other four panels used the first panel's list of abilities, but developed its own percentages to express the relative importance of each ability to the tasks within its cluster.

The second major stage in developing Exam No. 8155, the process of test construction, consisted of four identifiable steps. First, the percentages of the five abilities necessary to perform each of the five task clusters were multiplied by the weightings that had been given to each task in Step 3 of the job analysis on the basis of frequency, importance, and time spent. This yielded a general measurement for the importance of each of the five abilities for performance of the job of police officer. As a result of this computation, the Department of Personnel concluded that on a test with 100 questions, 15 questions should test for the ability to recall facts, 9 questions for filling out forms, 14 questions for understanding and applying sections of the criminal law, 32 questions for understanding written instructions and applying appropriate procedures, and 30 questions for human relations skills. Next, a group of eleven police officers was selected to write multiple-choice questions that tested for the five abilities, as they related to the 42 identified tasks. The officers wrote many of these questions from Police Academy materials and similar sources, however, without having access to descriptions of the five identified abilities, or the 42 ranked tasks. In the third step, Department of Personnel staff members who did have access to the description of abilities and the ranking of tasks reviewed the questions written by the police officers to assure that the questions were not ambiguous, overly complex, overly specialized, or dependent on prior knowledge. As a result of this review, some questions were discarded, others were revised, and still others were added. Finally, the resulting questions were subjected to a further review by a panel of six police experts, and by various members of the Department of Personnel.

The test that resulted consisted of 100 multiple-choice questions, designed so that the candidate could answer correctly without knowledge of any information beyond what was provided on the test itself. The test materials were determined by the Department of Personnel to require an eighth-grade reading level, on the average, although the 14 questions on law required college-level reading ability. The estimated time for completing the exam was 1 1/2 hours, but 3 1/2 hours were allowed.

The first part of the exam, designed to measure the ability to recall facts, consisted of a page-and-a-half description of a burglary, and a series of 15 questions to be answered without referring back to the description. In the second part, testing ability to fill out forms, the candidates were given a simplified arrest form, and a page-long description of both a robbery and an arrested suspect, and then asked 9 questions about the proper entries to be made in filling out the form. Part three, intended to test ability to apply provisions of law, consisted of 14 questions, each briefly presenting the facts of an incident, and then requiring the candidate to identify the precise criminal offense involved on the basis of definitions provided in the test materials. ¹ The remaining 62 questions, of which 32 were intended to measure the ability to follow...